Sureshbhai Bhupatbhai Makvana vs Mahendrasinh Agarsangbhai Jadav
2024 Latest Caselaw 864 Guj

Gujarat High Court

Sureshbhai Bhupatbhai Makvana vs Mahendrasinh Agarsangbhai Jadav on 1 February, 2024

                                                                                NEUTRAL CITATION




     R/CR.MA/3316/2022                          ORDER DATED: 01/02/2024

                                                                                undefined




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
                         3316 of 2022

==========================================================
                    SURESHBHAI BHUPATBHAI MAKVANA
                                Versus
                   MAHENDRASINH AGARSANGBHAI JADAV
==========================================================
Appearance:
MB DODIA(3389) for the Applicant(s) No. 1
MR. ASHOK A PUROHIT(6267) for the Respondent(s) No.
1,10,2,3,4,5,6,7,8,9
MS ASMITA PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 11
==========================================================

 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                            Date : 01/02/2024

                             ORAL ORDER

Learned advocate for the respondents is absent when the matter is called out.

1. By way of the present petition under Section 439(2) of the Code of Criminal Procedure, 1973, the petitioner has prayed to quash and set aside the order dated 16.9.2021 passed by the learned 3rd Additional Sessions Judge, Limbdi in Criminal Misc. Application No.284 of 2021, whereby the learned Session Judge has granted regular bail to the respondent - original accused.

2. Heard learned advocate for the petitioner.

3. Learned advocate for the petitioner taking this Court through the photographs at page 66, would submit that the respondents have breached the condition No.4 imposed upon

NEUTRAL CITATION

R/CR.MA/3316/2022 ORDER DATED: 01/02/2024

undefined

them in the impugned order. He would further submit that the respondents have entered into the territory of Chuda Police Station within the few days of passing the impugned order, which indicates that the respondents have breached the condition. He has also pressed into service complaint at Annexure G at page 62 to submit that even the complaint was also tendered before the Chuda Police Station on 12.3.2021 to submit that on 11.3.2021, the respondents have entered into the vicinity of the Chuda Police Station. The respondents accused have not only threatened the witnesses and the first informant, but pressurized them to withdraw the case. He would further submit that Mr. Mahendrasinh Jadav is the police constable working in Chuda Police Station and he is the main person behind all the scuffle and they have not only passed threat, but also fired from the fire arms. Thus, this aspect has not been considered by the concerned learned Sessions Court while granting the bail to the respondents. Thus, he submits to allow the petition and to cancel the bail granted to the respondents accused.

4. On the other hand, learned APP would submit to pass necessary orders.

5. The concerned learned Session Judge while granting Criminal Misc. Application No.284 of 2021 has given following reasoning in para 6, which reads as under:-

"6.Taking into consideration the above legal aspect, the order passed by this court is to be considered. This court has imposed various conditions out of the one condition is regarding not to enter Taluka Chuda for a period of 6 months from the date of the

NEUTRAL CITATION

R/CR.MA/3316/2022 ORDER DATED: 01/02/2024

undefined

order. The applicant has stated that this condition has been breached and to substantiate this say, has produced the photographs vide Mark 8/1 to 8/4 . It is required to be noted that the Investigating Officer has also filed the affidavit vide Exh.4 but from the said affidavit it transpires that the Investigating Officer has not alleged any breach of the conditions by the present opponents. It is also to be noted that the applicant has not given any application to concerned police station regarding there being any breach committed by the present opponent no.1 to 10. The applicant has produced various photographs vide Mark 8/1 to 8/4 but the said photographs are not cleared and nowhere it has beens stated and from where the said photographs were got printed and further at this juncture merely by producing the same, without any kind of evidence, this photographs cannot be taken into consideration and it cannot be believed regarding its authenticity and it is also to be noted that the said photographs are not cleared and pictures are also not cleared and there is no evidence to show that these photographs are of the original accused no.2,4,6 and 8 and hence, the say of the present applicant regarding the present opponent no.1 to 10 having breach the condition regarding not to enter in Taluka Chuda is not believable. Further the present applicant has stated that all the opponent no.1 to 10 have breached the conditions but vague allegations have been made that they were present in the home but the said allegations have not been substantiated by any kind of evidence and so also the say of the present applicant is not believable. If the present applicant had come to know regarding any of the breach of the condition, till date, he has not approached the concerned police station which is also a matter of consideration. It is to be noted that present applicant has stated that the Investigating Officer has not stated the fact that the cartridge was recovered in the affidavit filed in Cr.M.A. No.230 of 2021 but this averments is totally against the papers on record because vide Mark 3/4 , along with the bail application, the copy of the affidavit of the investigating Officer has been produced and on perusal of the same, in column no.14 there is clear mention regarding the cartridge is recovered from the place of incident and hence, this say is against the papers on record. Further, after considering all the factors and all the papers on record produced by the Investigation officer, this court has granted conditional bail to the present opponent no.1 to 10 by a detailed reasoned order and hence, when all the factors have been considered and nothing has been brought forward by the present applicant regarding any breach of condition by the present: opponent no.1 to 10, the bail already granted cannot be canceled in the present facts and circumstances of the case. Unless and until overwhelming circumstances are brought on record, the bail can not be canceled. So, considering the above stated fact along with the legal position, this application can not be allowed as there is no such circumstance which warrant the cancellation of bail already granted. As stated above, the photographs are not cleared and in

NEUTRAL CITATION

R/CR.MA/3316/2022 ORDER DATED: 01/02/2024

undefined

the said application mere allegations are made which are not supported by any kind of evidence and there is no evidence to show that the condition' have been breached at this juncture and hence the present application is required to be rejected. As stated above, there are no circumstances brought forward by the present applicant which are sufficient enough to cancel the bail under the provision of Section 439(2) of Cr.P.C. which is already granted to the opponent. no.1 to 10 and so, in the larger interest of justice, I pass the following order.

ORDER

1. This application filed under the provision of Section 439(2) of Cr.P.C. for cancellation of bail is hereby rejected."

6. As far as plea of photographs is concerned, it cannot be considered to believe that the respondents have entered into the vicinity of Chuda Police Station on particular date. As far as the complaint at Annexure G is concerned, it is an application tendered to the PSI, Chuda Police Station, it is not a registered complaint till date and no action has been taken by the petitioner to get it registered.

7. In Bhagwan Singh v Dilip Kumar @ Deepu @ Depak reported in 2023 INSC 7613, this Court after considering judgment in case of Dolat Ram v State of Haryana, (1995) 1 SCC 349; Kashmira Singh v Duman Singh, (1996) 4 SCC 693 and X v State of Telangana, (2018) 16 SCC 511, held as follows:

'13. It is also required to be borne in mind that when a prayer is made for the cancellation of grant of bail cogent and overwhelming circumstances must be present and bail once granted cannot be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it in conducing to allow fair trial. This proposition draws

NEUTRAL CITATION

R/CR.MA/3316/2022 ORDER DATED: 01/02/2024

undefined

support from the Judgment of this Court in Daulat Ram and others v. State of Haryana reported in (1995) 1 SCC 349, Kashmira Singh v. Duman Singh (1996) 4 SCC 693 and xxx v. State of Telangana (2018) 16 SCC 511.'

8. Thus, this Court finds no circumstances to adjudge the impugned order as unjust and contrary to the settled principles of law. As held earlier, the petitioner has failed to point out supervening circumstances, which may interfere with the fair trial. It is also required to be noted that the entire investigation is stayed by the Division Bench of this Court vide order dated 5.9.2022 passed in Special Criminal Application No.9090 of 2022.

9. Before parting with the order, I may also refer the observations made in the recent decision by the Hon'ble Apex Court in case of Kekhriesatuo Tep and others Vs.National Investigating Agency reported in (2023) 6 SCC 58. The relevant observation made in para 20 reads as under:-

"20. An interference by an Appellate Court and particularly in a matter when liberty granted to a citizen was being taken away would be warranted only in the event the view taken by the Trial Court was either perverse or impossible. On this limited ground, we find that the appeals deserve to be allowed."

10. Resultantly, present petition fails and stands dismissed. Notice discharged.

(J. C. DOSHI,J) SHEKHAR P. BARVE